Married in or out of community of property, and the accrual: what it means on divorce

At a glance

No antenuptial contract

In community of property

One joint estate.

A contract, silent on accrual

Out of community, with accrual

Accrual applies unless the contract expressly excludes it (section 2).

A contract that excludes accrual

Out of community, without accrual

Each keeps their own estate.

Where to look

Your antenuptial contract

If you signed one, a notary drew it up before the wedding.

Which one is yours

1. Did you sign an antenuptial contract before you married?

   Who:

   You

   If not, you are married in community of property.

2. Does the contract expressly exclude the accrual system?

   Who:

   You, reading the contract

   For a marriage out of community entered into after the Act began, the accrual system applies unless the contract expressly excludes it (section 2).

3. Does the contract state what each of you started with?

   Who:

   You, reading the contract

   A starting value can be declared in the contract, or in a separate statement signed before the wedding or within six months after it, and attested by a notary (section 6).

How an accrual claim is worked out

The accrual is how much an estate's net value grew between the start of the marriage and its end. The spouse whose estate grew less has a claim for half the difference (sections 3 and 4).

Thandi
Net estate today	R2 100 000
Less an inheritance from her mother	− R300 000
Less her starting value, adjusted for inflation	− R300 000
Thandi's accrual	R1 500 000
Sipho
Net estate today	R700 000
Less his starting value, adjusted for inflation	− R100 000
Sipho's accrual	R600 000
The claim
Difference between the two accruals	R900 000
Sipho's claim against Thandi: half of it	R450 000

Matrimonial Property Act, sections 3 to 6.

In community of property: who can do what

Either spouse can deal with the joint estate alone, with the exceptions below (section 15).

• Written consent, with two witnesses

  Section 15(2) and (5)

  Selling or bonding a house or land, buying land on instalments, signing a credit agreement under the National Credit Act, and standing surety.

• Written consent

  Section 15(2)

  Selling or pledging shares, insurance policies, fixed deposits and other investments, or jewellery, coins and art held as investments. Drawing money from the other spouse's bank account.

• Consent

  Section 15(3)

  Selling or pledging household furniture. Receiving the other spouse's salary, inheritance or insurance payout. Giving joint assets away.

• If consent is refused

  Section 16

  A court can allow the transaction to go ahead if consent is being unreasonably withheld. It can also suspend a spouse's powers over the joint estate to protect the other.

Debts. A debt that can be recovered from the joint estate can be claimed from the spouse who incurred it, or from both of you together. For household necessaries, either or both of you can be sued (section 17(5)).

What a court can do

• Divide early

  Sections 8 and 20

  If one spouse's conduct is seriously prejudicing the other's share, or probably will, a court can order the accrual or the joint estate to be divided at once, during the marriage.

• Give time to pay

  Section 10

  A court can let the spouse who owes an accrual claim pay later or in instalments, with security or interest.

• Order forfeiture

  Section 9; Divorce Act section 9

  On divorce a court can order that a spouse forfeits the benefits of the marriage, including an accrual claim, wholly or in part.

• Redistribute

  Divorce Act section 7(3)

  In some marriages out of community without accrual, a court can order one spouse to transfer assets to the other. A Bill before Parliament (B20-2025) would remove the limit to marriages before 1 November 1984. It is not yet law.

• Let you change system

  Section 21

  Both spouses can apply together to change their system. The court needs sound reasons, notice to all creditors, and to be satisfied that nobody else is prejudiced.

What goes wrong

• No starting value was ever declared

  Without one, the starting value is taken to be nil, so everything you own counts as growth unless you can prove otherwise (section 6(4)).

  Worth checking: your contract, and whether a separate statement was signed within six months of the wedding.

• An inheritance has been mixed into everything else

  An inheritance and what was bought with it are left out of the accrual (section 5). That is only useful if it can still be traced.

  Worth checking: what records show where the inherited money went.

• Not asking for the figures

  When an accrual has to be worked out, each spouse must give full particulars of the value of their estate when asked (section 7).

  Worth checking: whether you have asked, in writing, for full particulars of the other estate.

• Assets being moved or run down before the divorce

  A court can order the estate to be divided at once where a spouse's share is being seriously prejudiced (sections 8 and 20).

  Worth checking: what is happening to the property now, not at the end.

• Signing surety or selling the house alone, in community

  Both need it (section 15). A spouse who goes ahead knowing consent would not be given can have the loss counted against them when the estate is divided (section 15(9)).

  Worth checking: whether the other spouse's written, witnessed consent exists.

What to gather